Shut up and eat everything on your plate

“Free speech not only lives, it rocks!” TV talk show queen Oprah Winfrey exulted after a federal judge dismissed a multimillion lawsuit against her by Texas cattlemen outraged by remarks she and a guest made on one of her shows. That was in February 1998.

Two years later, she has learned the hard way that free speech may rock, but it also costs. A lot.

A few days ago the U.S. Court of Appeals for the 5th Circuit in New Orleans handed Winfrey yet another legal victory, upholding the previous ruling. Ironically, the more she wins, the more she loses.

The court case centers on an episode of “Oprah” called “Dangerous Food.” Among other things, the show talked about mad-cow disease, with Winfrey at one point saying that she had been “stopped cold from eating another burger.” Within an hour of the broadcast, cattle prices in certain markets began to drop precipitately and stayed depressed for nearly three months.

Cattlemen were up in arms and eventually sued the talk show host, her production and syndication companies, and one of her guests, activist Howard Lyman. And so it began.

That was in April 1996. Since then, Winfrey has had:

To air a follow-up show a week later to placate the cattle industry.

To move her show from Chicago to Amarillo for six weeks of trial.

To endure the expense and drain on resources and energy of 45 months of litigation that has produced thus far 75 volumes of court records, 5,666 pages of testimony, and millions of dollars in expenses.

It is not over. A parallel state lawsuit remains in the original federal trial court, awaiting disposition. The cattlemen likely will appeal the 5th Circuit ruling. The litigation could go on for years.

How can Oprah Winfrey be hauled into court for exercising her First Amendment right to discuss a vital public issue?

Because of the existence of food-disparagement laws. Essentially, these so-called “veggie libel laws” make anyone who says something critical of food products vulnerable to a lawsuit or — in the case of Colorado — criminal prosecution. Farmers, ranchers and the agri-chemical industry have pushed these laws hard in the last few years. So far, 13 states have them. Legislatures in Arkansas, Iowa, Maryland, Missouri, New Hampshire and Vermont have taken up and rejected veggie-libel laws in recent sessions. An effort to repeal the Texas law last year fell short. But for the first time since 1990, no veggie-libel laws have been introduced in the current sessions.

There seems to be no need. Oprah Winfrey’s show was in Chicago. But she was hauled into court in Texas. Because agricultural products cross state lines with such frequency, practically anyone anywhere in the United States is subject to suit. These laws have done the job they were intended to.

A citizens group in Ohio had to stop its advocacy on behalf of safer food to fight a threatened lawsuit.

A carmaker had to pull its ads from television after emu farmers complained that their birds had been libeled.

A Texas extension agent was threatened with a lawsuit for being critical of a commercial grass seed in his newsletter to farmers and ranchers.

Actor Alec Baldwin told The New York Times that he believed his proposal for a documentary on “The History of Food” was turned down because it dealt with pesticides, herbicides and disputed beef-raising practices.

The publisher of J. Robert Hatherill’s book, Eat to Beat Cancer, excised from his manuscript long passages about growth hormones administered to dairy cattle and other material that might be targeted for suit under veggie-libel laws.

A book called Against the Grain: Biotechnology and the Corporate Takeover of Your Food was called back from the printer after Monsanto warned that it might disparage a herbicide called Roundup.

There is no way of knowing, of course, how many authors, researchers, journalists or citizen activists have remained silent about food safety, worried about lawsuits that would cost them dearly in resources, time and energy, even if they were speaking the truth.

Federal Judge Mary Lou Robinson wrote in the Winfrey case: “It would be difficult to conceive of any topic of discussion that could be of greater concern and interest to all Americans than the safety of the food that they eat.”

Even so, there will continue to be a chill in public discourse on food health and safety issues until the courts rule on the constitutionality of the veggie-libel laws. The trial and appeal judges in the Winfrey case declined to take that opportunity. The appeals court wrote that the case “presented one of the first opportunities to interpret a food disparagement statute. The insufficiency of the cattlemen’s evidence, however, renders unnecessary a complete inquiry into the Act’s scope.”

The judges also wrote: “When Ms. Winfrey speaks, America listens.”

What remains unspoken but quite evident is that when Ms. Winfrey is punished unmercifully for engaging in protected speech, Americans shut up.

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

The First Amendment to the U.S. Constitution – the cornerstone of American democracy – is the focus of the National First Amendment Moot Court Competition. Recognized as one of the nation's finest constitutional-law competitions, this annual event features a current First Amendment controversy.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

Past participants in the National First Amendment Moot Court Competition have represented law schools nationwide, from Brooklyn Law School to Duke University to Arizona State to Harvard.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.